In an attempt to revive the Mar-a-Lago classified documents case thrown out by Judge Aileen Cannon last month, Special Counsel Jack Smith has now filed a brief with the U.S. Court of Appeals, a day early no less. MSNBC legal analysts Andrew Weissmann and Mary McCord discuss Jack Smith’s arguments in the brief asserting that Judge Cannon had wrongfully ruled the special counsel had been appointed illegally. Then, looking ahead at proposals in the January 6 case expected to be filed later this week. And we take some of your listener questions!
Update: Following this recording, it was reported that Jack Smith revised his indictment in the January 6th case to address the Supreme Court’s ruling on immunity. A procedural filing is still expected this coming Friday, August 30th.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi and welcome back to “Prosecuting Donald Trump.” It is Tuesday, and Tuesday morning, August 27th, and I’m sort of stressing that, Mary, because we thought that we would be doing this tomorrow, Wednesday morning, and I think we even told people last week that we would be.
Mary McCord: We did.
Andrew Weissmann: Why is that? Because the brief that Jack Smith filed in the 11th Circuit, appealing Judge Cannon’s ruling, was due today, meaning that he would have up until, I think, kind of midnight to file it.
Mary McCord: Yeah.
Andrew Weissmann: And so we were going to basically be up very, very late, assuming he was going to file the last minute, and then we were going to record tomorrow morning. But he surprised everyone and he filed a day early.
Mary McCord: Not something the government does a lot.
Andrew Weissmann: I know.
Mary McCord: At least not when I was in the government.
Andrew Weissmann: Yeah, no, everything’s always like at the last minute.
Mary McCord: Last minute.
Andrew Weissmann: No matter how much you prepare, there’s always like proof. There’s always something.
Mary McCord: That’s right.
Andrew Weissmann: So, anyway, here we are. It is August 27th. It is 10:22 a.m. And we both have leisurely read the brief.
Mary McCord: Yeah. I didn’t have to stay up late to read it.
Andrew Weissmann: Exactly. So Mary, gee, what’s on our dance card today?
Mary McCord: Yeah. And by the way, I’m Andrew’s co-host, Mary McCord. Good morning and good evening, whatever you happen to be listening.
Andrew Weissmann: Yes, everyone knows except for our new listeners. So welcome our new listeners.
Mary McCord: Yes, so obviously we’re going to spend quite a bit of time today talking about that filing. That is of course the appeal of Judge Cannon’s dismissal of the entire Mar-a-Lago prosecution on the grounds that Jack Smith was unlawfully appointed in violation of the Appointments Clause of the Constitution. And then we will talk about, really, we’ll just kind of anticipate what the parties will file on Friday in the D.C. January 6 related case. The parties are due to file a joint proposal for how to proceed in light of the Supreme Court’s immunity decision. And if they have disagreements and can’t agree to spell those disagreements out, then the court will actually hear from them next week on September the 5th. And then we are going to get to some listener questions. We have some really good ones.
Andrew Weissmann: I know, they’re amazing.
Mary McCord: Yes, yeah.
Andrew Weissmann: They’re really amazing, so keep them coming and thank you. The quality is keeping us on our toes. They’re excellent. But Mary, let’s turn to the brief that was filed. And I thought maybe we’d start with something that is not totally substantive about what their position is, but rather sort of the tone and sort of the tenor of the brief. And then we’ll go to the substance of the argument and then maybe what was not said.
Mary McCord: That’s right.
Andrew Weissmann: Which is big. But I just thought it might be worth a note that this was an incredibly dignified brief in my view, in terms of tone. It read in a very dispassionate way. In some ways it reminds me, this isn’t quite an anecdote, not this early. But I remember once we had such an outrageous thing that had happened on the defense side, that our submission to the district court judge, every single adjective and adverb was taken out. We just set out the law and the facts as dispassionately as possible. And in some ways, it was more devastating by doing that. And that was my reaction to this that some people might have wanted to see more hammer and tongs, but I thought that the tenor of it was both the right tone for the 11th Circuit, where they don’t know who their panel is yet, so they don’t know which judge they might get, but also made it stronger.
Mary McCord: I mean, in general, that was certainly always my approach and I think the government’s approach generally to briefing is that they don’t have a dog in the fight in the sense of trying to be overly hyperbolic. The government feels like what it’s trying to do is to do justice for the American people and the best way to do that is to use the facts and the law in support of your arguments as opposed to adjectives and adverbs. And this is something that I’ve carried with me having left the government, you know, having spent a large chunk of my time in government doing appellate work. But even in my work at ICAP now in my day job, oftentimes my role when I review a brief is to take out all those adjectives and adverbs that people put in when they draft because they’re mad or it’s cathartic —
Andrew Weissmann: They’re triggered.
Mary McCord: — or they’re triggered, right. And then here comes Mary, like, we’re taking that adjective out, we’re taking this adjective out. And everyone knows it, all the attorneys who I work with, they know it, they’re like, that first draft, you just got to get out all your, you know, strong feelings about how wrong the lower court was when you’re the one on appeal, but then you want to come back, you want to take a step back. You want to just let your arguments on the law and how the law applies to the facts and how the trial court got it wrong, or if you’re defending the trial court, how the trial court got it right and do that through the persuasiveness of your arguments rather than the hyperbolic nature of your rhetoric. And that’s where I think we see a difference. And we have yet to see the responsive brief by Mr. Trump’s attorneys. But if you just think about other things that they have filed, including in this case before Judge Cannon, theirs have always been more hyperbolic than what —
Andrew Weissmann: Yeah.
Mary McCord: — we’ve seen from the government. Although I will say some of the briefing in some of the appellate’s briefs in the January 6 related case was, I’d say, somewhat toned down from what had been briefed in the trial court, even on Mr. Trump’s side. Yeah.
Andrew Weissmann: Yeah, it’s a big spectrum, I suspect, based on who is writing it.
Mary McCord: Yeah.
Andrew Weissmann: Just to be clear what Mary and I are saying for our listeners, is not that this isn’t a strong sort of hash it —
Mary McCord: Right. Yes.
Andrew Weissmann: — brief in terms of laying out why Judge Cannon is wrong. So this is really a question of tone and style.
Mary McCord: Yeah.
Andrew Weissmann: And it can go a long way in persuasion with respect to with the —
Mary McCord: And credibility.
Andrew Weissmann: — 11th Circuit. Exactly. And especially since they do not know who their audience is, but the right thing to do and strategically the right thing to do. But maybe there’s a good segue to —
Mary McCord: What’s it say?
Andrew Weissmann: — what’s it say. And I have to tell you, this felt like just incoming.
Mary McCord: It did.
Andrew Weissmann: I mean, we knew that Judge Cannon was wrong, but seeing it laid out page after page. It’s about 51 pages of actual argument on this issue. And it’s primarily on the issue of the appointment of the special counsel. Does the attorney general have the power to appoint a special counsel? There’s a small bit about the financing. It’s basically like a throwaway —
Mary McCord: Yeah.
Andrew Weissmann: — because there’s just nothing to that argument from Judge Cannon. And I’d say it’s in two sort of chunks, one longer than the other. But their first point is because they’re arguing to the 11th Circuit, which is a court of appeals, but has to follow Supreme Court precedent. The first point is that this was decided in the Nixon case and it wasn’t dicta, and that the 11th Circuit has to follow it. We can talk about that more. And then the second issue is how the text of the congressional statutes and the history and interpretation of the Department of Justice, of the courts, of even Congress and how they viewed it is all on the side of even if you didn’t have that Supreme Court decision, that is binding on the 11th Circuit. Even if you got to the issue of is there a statute that authorizes this for the attorney general to appoint a special counsel, that all of those things, the tax, the history, the consistent interpretation, the other court decisions are all uniformly against —
Mary McCord: Congress continuing to fund things and never legislating in a way that would take away the power that the attorney general had been exercising time and time again throughout history. I think that’s an important part too of statutory interpretation.
Andrew Weissmann: Yeah. In fact, can we just say on that, not only did they not change it, but they’ve actually been assuming —
Mary McCord: Yeah.
Andrew Weissmann: — that, of course, this is the case that the special counsel could be appointed. And just to be clear, it’s not political. Democrats and Republicans have done the same thing. In other words, you have Democratic administrations and your Republican administrations all appointing special counsels. Some special counsels are within the department, some special counsels are initially outside of the department, and then they’re brought in to do this job. And the brief is, I think, just devastating.
Mary McCord: Well, it certainly historical and it actually does grammar lessons on things like what a past participle is and how past participles can still be used in the present tense. So I was like, ooh, this has taken me back to high school English when you used to have the diagram sentences.
Andrew Weissmann: Exactly.
Mary McCord: Like I’m sure no one listening remembers that except those of us —
Andrew Weissmann: I remember it.
Mary McCord: Oh my gosh. I don’t think they do that anymore. Anyway, let’s go back to the —
Andrew Weissmann: Wait, you don’t think they diagram sentences?
Mary McCord: I don’t remember my kids who are now in their 20s, I do not remember them diagramming sentences, but I could be wrong about that.
Andrew Weissmann: Wow.
Mary McCord: It’s not like I looked at all their homework, but I don’t think so.
Andrew Weissmann: Okay, by the way, you know Mary, we’re now going to get, like, this is —
Mary McCord: Oh, I know.
Andrew Weissmann: — we’re crowdsourcing.
Mary McCord: All kinds of people are going to be writing to us about diagramming sentences. And our producer’s looking at us like, what are you talking about?
Andrew Weissmann: Exactly because he’s born —
Mary McCord: He’s much younger than us.
Andrew Weissmann: — in a generation where they didn’t diagram sentences.
Mary McCord: That’s right. Yes, that’s right.
Andrew Weissmann: Okay.
Mary McCord: Okay, let’s go back to the dictum point because I think this is important.
Andrew Weissmann: Yeah.
Mary McCord: So, United States versus Nixon, this was a case that went to the Supreme Court. It is a case where the special counsel appointed to investigate Watergate, the Watergate scandal, had issued a subpoena to President Nixon for the White House tapes and other information. And so he went in to challenge that and the case is primarily about executive privilege. He said he had executive privilege not to turn over the things that were subpoenaed by the special prosecutor. So the court first had to determine, was this case even justiciable because it did go up to the Supreme Court? Meaning, what Nixon had argued is, this is just an intra-agency dispute, because I’m the president of the United States. This special prosecutor is trying to get documents, the court shouldn’t bother with this at all.
And the court said, no, this is justiciable. This is something that we can rule on because the special prosecutor was appointed pursuant to statutes that the attorney general used to make this appointment and a regulation issued by the Department of Justice. That regulation is in play. While it’s in play, I mean, it’s still enforced. It’s never been repealed. That regulation governs here for the special counsel to be able to seek these documents. So we will now rule substantively on your claim of executive privilege. And the issue there was is that the Supreme Court said that the test that a special prosecutor has to show is really this compelling need for the information in furtherance of his responsibilities in this criminal investigation, one that essentially a balancing test based on his compelling need for the information here.
Again, we’re talking about the Watergate tapes and other information, and that outweighed any concerns about executive privilege. So what the special counsel now, Jack Smith, is saying is Judge Cannon was wrong to say that it was just dicta in the Supreme Court that the special prosecutor appointed in Watergate was constitutionally appointed, that that’s just dicta, that that didn’t matter, that the court assumed it was lawful and went on to decide the executive privilege question. And that’s just flat out wrong. If you go and you read the case, the court didn’t say we are assuming that the special prosecutor was lawfully appointed and now we’ll rule on executive privilege. They went through, as I was just explaining, the fact that the special prosecutor was appointed under a set of regulations that were authorized and that is where the authority comes from. And so to just give a thought or two about dicta, because people may be saying, what is dicta?
Andrew Weissmann: Right, yeah. That’s what I was going to get to, yeah, exactly.
Mary McCord: So dicta mean sometimes courts will say, we’re not going to resolve every issue in front of us, we’re going to get to the issue we care about and we’re going to either assume something and not actually have the parties argue it, not make a decision on it. We’ll just assume it and we’ll go on to the next thing. Sometimes they will also be issuing a decision and they’ll say a few things about something else. And in fact, we’ve seen that in the 14th Amendment section three case and other cases, they say a few things, but those are not load bearing. In other words, they are not an essential —
Andrew Weissmann: It’s embroidery.
Mary McCord: Yeah, it’s embroidery. This in U.S. v. Nixon was necessary to the holding.
Andrew Weissmann: Right. By the way, that is what the D.C. Circuit said when they were —
Mary McCord: Every circuit and every court.
Andrew Weissmann: — reviewing this issue. They said this was necessary. I have to say it’s so disrespectful of Judge Cannon because she’s thinking, you know what, I want to get this, I’m just going to ignore the Supreme Court because the current Supreme Court might have a different view. But as a district court judge, you don’t have that luxury.
Mary McCord: You don’t.
Andrew Weissmann: You have to be faithful to the Supreme Court decision even if you disagree with it. And she could have said, you know what, I disagree with this, blah, blah, blah, but I’m bound by it.
Mary McCord: That’s right.
Andrew Weissmann: And she didn’t. To me, it’s just another badge of being triggered. Let’s just be polite, poorly reasoned her decision and outcome determinative. So that’s how she put aside the Nixon case and I —
Mary McCord: And I think she did feel empowered by Justice Thomas’s —
Andrew Weissmann: But it was only one justice, right?
Mary McCord: That’s right, I know. But I think, as we talked about after the immunity decision came down, when Justice Thomas wrote separately to talk about the appointment of the special prosecutor, I mean, it’s not even dicta because it wasn’t part of the majority opinion. It’s just one justice’s opinion on something that had never even been argued or briefed in the Supreme Court in the immunity case.
Andrew Weissmann: Yeah.
Mary McCord: But that I think she saw as, ooh, this is my —
Andrew Weissmann: It’s an invitation. Yeah.
Mary McCord: — open door, yeah, to go ahead and talk about this.
Andrew Weissmann: So then the court went on to go through all the various statutes. And I wanted to sort of highlight two points, Mary. One is, sort of big picture that I think people will understand about what Judge Cannon was saying and the ludicrousness that Congress would have had this kind of statutory scheme in mind. According to Judge Cannon, the sin of all sins here was that Jack Smith was outside the department and then was appointed and then in the department. Leave aside that she makes the fundamental error that we’ve talked about where she describes him as a private attorney because he was a private attorney, but then he’s hired as special counsel, so then he’s in the department. And she says there has to be essentially a time gap where the person was outside the department, then they’re in the department, then it would be okay to give him the role of special counsel. In other words, as long as the person is in the department, then they can be a special counsel. In other words, the attorney general could just take somebody from within the department and make them a special counsel, but the sin here is having hired them from outside the department. And one of the things that the brief says is —
Mary McCord: And can I just interject that this is where the past participle point comes in?
Andrew Weissmann: Yeah, exactly. But the big picture, I mean, yes, they have a linguistic relevance, but the big picture about how ludicrous it is, they said that could be one second from —
Mary McCord: Yeah, you could hire him. Okay, now he’s been retained. He’s now a department employee. Now we’re going to appoint him.
Andrew Weissmann: Right, which is just insane that that would be their view. And she does that based on this past participle argument that —
Mary McCord: And the words are —
Andrew Weissmann: Go ahead, yeah. Yes.
Mary McCord: — the statute of Section 515B of the Title 28 of the U.S. Code empowers the attorney general to commission attorneys who are, and here’s the quote, who are specially retained under authority of the Department of Justice as special assistants to the attorney general or special attorneys. So she takes specially retained and say, that’s the past tense, which means you have to have already been retained in the Department of Justice before you can be appointed as a special assistant to the attorney general or a special attorney. And that is a past participle, specially retained, and according to the brief and to grammar rules and grammar scholars who are quoted or grammarians who are quoted, is that a word? I think it is.
Andrew Weissmann: Yes, it is.
Mary McCord: Specially retained in that usage even as a past participle is being used in the present tense. So anyway, it’s kind of interesting aside because I’m reading it, I’m like, I can’t believe we’re getting —
Andrew Weissmann: I know.
Mary McCord: — a brief on the use of past participles. But anyway, to your point, specially retained, even if you took her point of it having to be past tense. Again, okay, we hire him. Now he’s retained. Five minutes later, we appoint him as special counsel.
Andrew Weissmann: One second. They literally say one second would work.
Mary McCord: They do. So it’s kind of ridiculous.
Andrew Weissmann: So one other point, which I thought was really smart, a smart messaging to the 11th Circuit, and I think smart in terms of where this could go in terms of potential Supreme Court review, which is that in two places in the brief, they specifically call out writings or roles that two of the current justices have —
Mary McCord: Yes.
Andrew Weissmann: — taken in the past. So on page 42, they make reference to a law review article that Brett Kavanaugh wrote called “The President and the Independent Counsel.” It was in the Georgia Law Journal in 1998, where he talks about the quote, “deeply rooted tradition of appointing an outside prosecutor to run particular investigations.” Notice outside prosecutor, just to the point that we were just making. And that’s something, by the way, I’m going to give a shout out to Lawrence O’Donnell because many, many months ago, he had found this and had a whole show where he very much was like reading chapter and verse from what Justice Kavanaugh.
Mary McCord: From Brett Kavanaugh.
Andrew Weissmann: Exactly. Second, in footnote 22, this is something that we talked about, Mary, in a prior episode, which is that the brief has a footnote talking about when the Independent Counsel Act was sunsetting. That was after Ken Starr, who was appointed an independent counsel and people had sort of issues with it.
Mary McCord: Under a statute, yeah.
Andrew Weissmann: Exactly, when that statute was sunsetting, people said, well, you know, there were two ways to appoint a special counsel. One was under the Independent Counsel Act, but the attorney general always had this other authority, which is what’s at issue here. And that is something that is called out in footnote 22, because when the Independent Counsel Act was sunsetting, there was a bipartisan commission that was sort of put together, commission’s probably the wrong word, but sort of group of eight distinguished citizens, that’s how it’s described. And it was Senators Robert Dole and George Mitchell, hence the bipartisan nature. And the eight distinguished citizens included one member who is the current Chief Justice of the Supreme Court, Roberts. And it was to study and recommend alternatives to the Independent Counsel Act. And what the footnote points out is, although the ultimate recommendation was to have sort of legislative cure, what the report said, and I’m going to, again, quote from this, is quote, “since creation of the Department of Justice in 1870, the attorney general has had standing statutory authority, now in 28 U.S.C. Section 515, to retain a counsel as a special assistant to the attorney general or as a special attorney.” So again, has standing statutory authority since 1870. And I thought it was just so notable that they had these two sorts of shout outs to these current Supreme Court justices.
Mary McCord: Yeah, absolutely. And when you talk about sort of devastating stuff in the brief, I think that’s it. I have two more things I want to talk about. One is fallout, fallout from this Judge Cannon decision and also what’s not in this brief.
Andrew Weissmann: Exactly.
Mary McCord: But let’s take a break and come back and talk about those things.
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Mary McCord: Welcome back. So we have been talking about the U.S. government’s appellate brief in the 11th Circuit now. And I want to talk about, you know, we had whole episodes about the fallout of the immunity decision, the Supreme Court’s immunity decision, and some of that fallout meaning collateral consequences, other things that were called into question. And one of the things that really stood out to me in this brief by Jack Smith and his team is their argument about essentially the fallout, the collateral consequences of Judge Cannon’s decision if it were to be affirmed. And this is actually on page 56 of the brief. They’re saying that the district court’s reasoning also needlessly cast doubt on longstanding practices in the Department of Justice and across the whole Executive Branch. And here’s the key here. It suggests —
Andrew Weissmann: Yeah.
Mary McCord: — that every special counsel throughout history who was appointed from outside the Department of Justice, who did not assist a U.S. attorney, was invalidly appointed, and that every attorney general who made such appointments acted ultra vires, meaning outside of law, that Congress repeatedly overlooked the persistent pattern of errors and the Supreme Court itself failed to spot that flaw in Nixon. And then they go on, and I’m quoting all this, “but it also goes much further. If the attorney general lacks the power to appoint inferior officers, that conclusion would invalidate the appointment of every member of the department who exercises significant authority and occupies a continuing office other than the few that are specifically identified by statute.” And I will note, they say at a minimum, that list includes high-ranking department positions such as the Deputy Solicitor General, the Deputy Assistant Attorney General, my old job, the Principal Deputy Assistant Attorney General, wouldn’t have been able to appoint me in that position. And the district court’s rationale would likewise raise questions about hundreds of appointments throughout the Executive Branch, including in the departments of defense, state, treasury, and labor, which all rely on statutes resembling those that the attorney general uses, but in those cases to support their secretary’s authority to appoint inferior officers. So again, we’re talking about, look at what she’s done here. If you actually were to affirm that, it would call so many things into question that our government has relied on and Congress and the other branches have just relied on throughout centuries at this point.
Andrew Weissmann: So the thing that’s not in the brief —
Mary McCord: Yes.
Andrew Weissmann: — that everyone is going to be thinking this is like we need it, we buried the lead —
Mary McCord: Yes.
Andrew Weissmann: — which is that Jack Smith does not ask for the 11th Circuit to not just reverse Judge Cannon. That’s obviously what they ask for. But they don’t say, and send it back to a different judge. They don’t say that she should be recused and taken off the case. Now, the court has that power, regardless of the parties ask for it or not. And it’s not very commonly used, but it is something that the court can do. But it is not something that Jack Smith asked for. And I was trying to think of why they may not have done that. I’d be interested in the discussion about whether what you would have done. But when I was thinking about why they may not have done that is one, if you’re asking for that as the part of the relief, it puts a little bit more pressure on getting the main ruling they want, which is a reversal. Now, obviously the court can say we’re going to reverse but we’re not taking her off the case, but it makes it atmospherically a little bit of the thumb on the scale that you are asking for both of those things.
The second is it’s a little bit of the cart before the horse in the sense that yes, she has been reversed twice by the 11th Circuit. You could imagine some discussion internally that’s either, you know, we just don’t do that, we leave it to the court to do. And second, as an institution matter, that’s not something that the department engages in. You get sort of stuck with who you’re assigned. But the second is that, let’s see what the 11th Circuit and the Supreme Court does with this. If we win it, and it’s an outright sort of slam of her in the way that the 11th Circuit has done before, and we have three decisions now that say she is off the hook. I don’t mean in that sense, like she’s —
Mary McCord: Probably need a different —
Andrew Weissmann: Right.
Mary McCord: Yeah, probably a different.
Andrew Weissmann: Step off the curb. No film on the camera. The elevator doesn’t go to the top. Whatever expression you want to use. You could at that point deal with the issue, but wait for the ultimate win, whether it’s in the 11th Circuit or the Supreme Court before you were to make that decision. And finally, because this case is not going to be heard until after the election, there is an ability to have that particular issue decided in a calmer environment, hopefully, when there either is a Trump presidency, in which case this case is going away and its sort of moot anyway in many ways because the Department of Justice is going to be ordered to just stand down, or it will be a Kamala Harris presidency and it can be dealt with at that point.
Mary McCord: Yeah. Well, I don’t disagree with anything, you know, that you’ve said and how you’ve described it. I also would not have sought recusal if I were still in the government and I had been on this brief. I think, you know, first of all, my entire career, I never pushed to seek recusal of a judge. It’s something that the department does very, very rarely. And I think you need to show more concrete evidence of sort of impartiality or bias than even what we have here. And I know some people, listeners are gonna be like, what is wrong with you, Mary? Look at all of her rulings. But I will say, sometimes she has ruled in Jack Smith’s favor, even though a lot of us have a lot of speculation about what biases she may have toward the former president. In the rulings and in her statements in court, I don’t think they always come out in a way that is that clear.
And I think that what Jack Smith thinks, and I agree with this, is that we win on the law here and we’re just gonna argue the law and she was wrong on the law and we’re gonna seek her reversal. But we can deal with these kinds of legal issues without having to take her off the case and it would take something more to get to that point. I think they also do not want to look political and that would be inherent, not only in this environment that we’re in generally, but also because we are literally here coming up on the eve of the election. I mean, the Trump brief will be due 30 days after yesterday, which is, I think, September 26. The government’s reply brief will be due 21 days after that, which I think is something like October 17. And at that point, we really, really are practically on the eve of the election. You know, to have recusal be part of this, I think the department was very concerned, as it has been and as it rightfully should be, about not doing anything that could be perceived, even if it’s something warranted, but that could be perceived as being political.
Andrew Weissmann: Yeah, so we’re going to agree to disagree on this in that I agree with you in terms of not seeking it now, but I think ultimately, they are going to have to seek it because I think she’s so erratic in her rulings and she has so many ways left open to really screw up this case in ways that are unlawful, including what’s called rule 29, meaning she could start the trial and then just get rid of it, and that’s not appealable. So I do think they’re going to have to deal with it. I also think, although I agree with you, that the standard for recusal, which I also have never saw in any case, is and should be very high because you don’t want people to just say, oh, I don’t like the judge, I want a new one.
Mary McCord: Right. And I don’t even know that’s a disagreeing. I’m saying I wouldn’t do it now. There may be a time later. Yeah.
Andrew Weissmann: Yeah, yeah.
Mary McCord: We always figure it out. Yeah, the rest is dicta.
Andrew Weissmann: The rest is dicta, right. We wouldn’t have done it now because it can be done later. So Mary, is this a good place to take a break and then we’re gonna briefly talk about what’s gonna happen this Friday with the joint filing and then get to listener questions.
Mary McCord: Sounds great.
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Mary McCord: Welcome back. As promised, let’s speculate about Friday. Friday is when Trump’s team and jack Smith’s team are due to file their proposal for what the order of proceedings should be. What type of proceedings there should be on remand from the U.S. Supreme Court to Judge Tanya Chutkan and the U.S. District Court for the District of Columbia in the January 6th case? And I want to give you a little bit of something that I learned from a reporter, and the reporter has now reported this, this is in Bloomberg Law, when he called me to ask me questions about this last week. He said he was hearing that Jack Smith is not going to ask for some sort of mini trial before the election, and that Jack Smith is concerned about a mini trial sort of previewing his hand and he wouldn’t my thoughts on that. I responded, I can see that and that argument, but more importantly, I don’t think there’s even time for a mini trial before the election, even if he wanted one.
And I could see him not wanting to try to push for something that, again, might look political and that, you know, I think he’s really going to be focused on. How do we narrow this case in a way that we have our strongest chance as the federal government of being able to put on a case without running afoul of the Supreme Court’s ruling in the immunity case? In other words, how do we make sure everything we’re charging is not an official act and that the evidence we want to use is either not official acts evidence or is something that’s in a public record or, you know, allowed by the Supreme Court’s ruling? And that his focus may be on narrowing it. And I know a lot of people are probably disappointed. And I don’t even know if that’s right. This reporter says he’s getting this from various sources, but that’s what he’s telling me.
Andrew Weissmann: So remember, this is the case where the filing was supposed to have been made three weeks ago.
Mary McCord: Right.
Andrew Weissmann: That the Department of Justice asked for three more weeks to sort of coordinate with other parts of the department as they are required to do because see our earlier discussion, the special counsel is part of the Department of Justice.
Mary McCord: Of the department.
Andrew Weissmann: And so I do think that this will be interesting, maybe more for us insiders to sort of be tea leaf reading about sort of what they are thinking about how this would apply and what the issues are for other parts of the department. We talked about the National Security Division, civil rights, environmental. There are millions of parts of the department, not just the criminal division and the National Security Divisions that are sort of instrumental to this case. So I think that’s going to be interesting. I agree with you that as a timing matter, it may be hard. I also, on the reporting, the reason that a reporter would have a story like that in my estimation is very frequently, and I saw this when I was on the Mueller investigation, when prosecutors have to have discussions with defense lawyers, and here they do have to because it’s a joint filing, there is nothing that prevents the defense lawyers from speaking to the press.
Mary McCord: That’s right. Yeah.
Andrew Weissmann: It’s not even a leak in the sense that it’s not improper.
Mary McCord: They’re not under a gag order.
Andrew Weissmann: Exactly. I’m not saying that defense lawyers are lying about it. It’s that it’s not totally clear whether they’ve omitted something and whether things get lost in translation. And when I was reading the “New York Times” reporting on this, that wording was interesting to me because it said things like the Department of Justice is going to seek a major hearing. So that’s consistent with their saying there may have to be some hearing.
Mary McCord: Of course, right.
Andrew Weissmann: And with facts being presented, but that remains to be seen. Will they ask for a hearing on what issues, how would the facts be adduced? Would it be with live witnesses or could it be through the submission of affidavits or what are called FBI 302s, that’s notes of interviews.
Mary McCord: Yeah.
Andrew Weissmann: Could it be grand jury testimony that they’re given permission to make public? So a lot of that remains to be seen, but that’s essentially what we’re going to be keeping our eye out for this Friday and you all should be too.
Mary McCord: And we’ll be talking a lot about it next Tuesday.
Andrew Weissmann: Yes. So, listener questions. Mary, do you want me to give you the first one?
Mary McCord: Sure.
Andrew Weissmann: We can go back and forth?
Mary McCord: Yes, let’s do it.
Andrew Weissmann: So here’s the first one from Craig, which is, can the 14th Amendment prohibition under the Insurrection Clause be lifted by a presidential pardon? What do you think?
Mary McCord: This takes us back to when we were discussing the case involving the attempt by Colorado to disqualify former President Trump from the ballot under the 14th Amendment Section 3. Listeners will recall that constitutional amendment says that no one shall hold any office under the United States, including the presidency, who shall have engaged in insurrection or rebellions against the Constitution of the United States. And that disqualification in the 14th Amendment Section 3, that is not a criminal conviction, does not require a criminal conviction. The Supreme Court did say it would require some sort of action by Congress, something for Congress to do. It’s not sort of totally self-implementing there. But it would not have to be a criminal conviction. And it’s a criminal conviction that the president has the ability to pardon. Query whether he could pardon himself. That’s an unanswered question. No one’s ever had to answer it. A lot of scholars think he couldn’t. But even putting that aside, what happens in section three is not itself a conviction. Can’t be pardoned. That said, the constitutional amendment itself does provide for a way around that, and that is if Congress, by vote of two-thirds of each House, removes this disability, removes this disqualification. And in fact, that did happen after the Civil War with respect to people who had been found to have engaged in rebellion against the Constitution, insurrection or rebellion, and some of that disability under the 14th Amendment, Section 3, that disqualification was removed by vote of Congress. So it’s something that Congress could act to do something about, but not that a president could just pardon himself from.
Andrew Weissmann: By the way, that is like the Halcyon day is where it’s you could think that two thirds of the Congress would do anything.
Mary McCord: Could agree on anything. Yeah.
Andrew Weissmann: Right.
Mary McCord: Okay, let’s move on. This is a really, really good question from David. Do we now have a Catch-22 with the immunity ruling where a future Supreme Court will only get to reconsider immunity if another president is charged with a crime? If so, it seems like under a normal president, we’ll never get to overturn it, that meaning the decision, and it’ll sit like a bomb waiting for a demagogue to take full advantage of it.
Andrew Weissmann: What a great question. I think the answer is that may very well be the case, that it’s hard to figure out what the opportunity will be to have that come up. But I could see a situation where there is a criminal investigation, not a prosecution, but an investigation of a president. And there’s almost like a manufactured challenge, or maybe not even manufactured, to whether that investigation could go forward as to the president. But even that, I think the department could say, well, it’s premature to decide that issue, and it’s premature to decide whether it’s been rebutted and whether it’s core and all of those issues. So it may be possible to think of a way to get the criminal investigation to the Supreme Court, but it would be unusual, to say the least. The other, which would be really difficult, would be for the court on its own with a different makeup to somehow take the opportunity to revisit it in a related case. And the thing that I’m thinking of is in the Trump versus Hawaii case, that is the case that dealt with the so-called Muslim ban. It actually was the third iteration of the Muslim ban.
Mary McCord: That’s right.
Andrew Weissmann: The court on its own said as a little throwaway, to be clear, we are overruling Korematsu, the Japanese-American internment case. And it overruled it in the narrowest possible way, by the way. That’s a little like —
Mary McCord: Yeah.
Andrew Weissmann: — I’m a total nerd, Mary. You know that I teach national security law also, but I’m not going to not digress on that. But that’s the second way in which the court could try to revisit this without the sort of a live case being presented because of the ramifications. Yeah, what do you got?
Mary McCord: Well, remember, this case is not over, right? This case is back in front of Judge Chutkan, the January 6th case.
Andrew Weissmann: Oh, I love it. Yeah, yeah, yeah. I love it.
Mary McCord: She’s going to make rulings about immunity. She’s going to make rulings about official acts and unofficial acts and evidence that the government can get in. I think, you know, if this case, depending on whether this case remains, because recall, if former President Trump is reelected, he will likely just shut down and order this case dismissed completely. But if that does not happen and the case proceeds, those rulings that Judge Chutkan’s makes are something that probably the Trump team will appeal and could find their way back to the Supreme Court. And at that point, the government certainly could come in and try to explain how some of what the court decided this summer is wrong and unworkable and, you know, not supported by history and essentially try to get them to revisit.
Andrew Weissmann: Yeah. I mean, presumably, I hadn’t really thought of that because it would presumably be in front of the same court.
Mary McCord: Same court.
Andrew Weissmann: Presumably, it may change. Okay. Excellent point. Let me ask you another question. This one is from Mark. I’m going to read the opening part.
Mary McCord: The beginning, I love it.
Andrew Weissmann: Because it says, I’m afraid this question may land Andrew back on Trigger Avenue, but here it goes. So by the way, Mark, clearly a frequent listener.
Mary McCord: That’s right. He knows Trigger Avenue.
Andrew Weissmann: And Mark should note that because it does trigger me, I’m going to ask this of Mary, the more level-headed person here. So here’s the question. As you know, Trump has filed, that’s technically wrong. Trump has said that he intends to file.
Mary McCord: That’s right.
Andrew Weissmann: He has not yet actually filed, but this says Trump has filed a $100 million lawsuit against the United States for damages caused by the FBI’s raid, that’s in quotes, on Mar-a-Lago. And the question is, if Trump were to file that suit, and if he were to become president again, could he order the Justice Department to settle the lawsuit for many millions of dollars, and thus put taxpayer money right into his pocket legally? Would such a settlement have to be approved by a judge, or is there any other check to prevent this?
Mary McCord: This might even trigger me.
Andrew Weissmann: Exactly. So what do you think, Mary?
Mary McCord: So, and just to your point on this isn’t a lawsuit yet, just by federal government regulations, you file administrative notice to the Department of Justice of your intent to file that suit and the department has something like 180 days to say, you know what, we’ll go ahead and resolve this and we’ll pay you blah, blah, blah. They’re not going to do that.
Andrew Weissmann: Yeah.
Mary McCord: I think —
Andrew Weissmann: This —
Mary McCord: Well, this administration —
Andrew Weissmann: That’s the question.
Mary McCord: That’s true, 180 days will go into at this point August, barely, but we’ll go into the next administration, I think, if my six-month math is correct, because we are in late August. So I think probably he could. Under the Supreme Court’s ruling, he would be the head of the Executive Branch. He would be directing his Department of Justice to take a position in litigation. And there is at least an argument under the immunity ruling that is an official act, communicating with your own Department of Justice. This listener, Mark, probably recalls one of the things we discussed, is that in that immunity ruling, the one thing the court did answer is it said, communications with your attorney general, between the president and the attorney general are official acts.
And between the president and other, you know, high level officials at the Department of Justice about investigations and prosecutions, and even if they were sham investigations and prosecutions, are official acts for which the president is immune. Now, immunity, of course, has only to do with his criminal liability. So it doesn’t mean carte blanche, you can do all kinds of corrupt things, but it does mean you will have immunity from any criminal responsibility. But I will say that yes, settlements if there is actually litigation pending do have to be approved by a court. And I do think a judge might look quite askance at something like this, might even try to appoint a special outside amicus lawyer to argue what normally the government would argue in order to defend against a $100 million lawsuit. And so we could see that kind of thing, a court actually intervening to try to prevent something like that from happening.
Andrew Weissmann: Yeah. I mean, just remember when a court, if there is a pending civil lawsuit, would have limited ability to review that. And that has happened in civil cases, for instance, in class action cases, it’s more routine to make sure that the class is being fairly treated. And we saw that, for instance, in the Flynn criminal investigation where —
Mary McCord: Right, that was criminal though, right, yes.
Andrew Weissmann: — where there was a plea and the court appointed someone essentially to represent the court’s interest in deciding whether essentially it was collusive between the department then run by Bill Barr and the defense. But again, there was an issue about limited authority.
Mary McCord: And that’s actually under the federal rules, but you’re right. I mean, on most civil litigation, the court would not have a role unless it’s a class action. I kind of misspoke on that.
Andrew Weissmann: And there’d be many ways also to get around it, essentially, because the issue is it’s very hard for the court to say, I’m forcing the Department of Justice to litigate —
Mary McCord: Yes.
Andrew Weissmann: — because the department could just be like, we’re getting rid of this case.
Mary McCord: Right.
Andrew Weissmann: And especially if the case hasn’t yet been brought because of the timing that we talked about the six-month period, and it’s just a private settlement where it never is going to court at all. And there’s just a private agreement between the Department of Justice and a dismissal, you know —
Mary McCord: Yeah.
Andrew Weissmann: — an agreement that this is binding that Donald Trump couldn’t now bring any more lawsuits and in exchange for which the department is going to pay X millions of dollars. It seems to me that you could have, you know, potentially Congress trying to do something, but I don’t think it would be the courts and the immunity decision, as you pointed out, would have important dicta because it came up in a criminal context, but it obviously has civil implications as well, given their reliance on a different Nixon decision in the civil context.
Mary McCord: Yes, that’s right. Now, I could see a taxpayer lawsuit against the Department of Justice might get thrown out.
Andrew Weissmann: Yeah, I mean, this is one where, Mark, this is just an excellent question, and it is fodder for one more reason why the criminal immunity decision is so bad.
Mary McCord: Yeah.
Andrew Weissmann: And an example of what Joe Biden has said, which is in light of that immunity decision, who inhabits the Oval Office. Again, whether Republican or Democratic, regardless of party, the idea of self-restraint and public service is such an important component given how much power that person has. So excellent, excellent question.
Mary McCord: All really great today. Thank you so much to our listeners.
Andrew Weissmann: So, Mary, before I thank everyone, do you know what we’re on the cusp of?
Mary McCord: I just learned what we’re on the cusp of.
Andrew Weissmann: Me too. And the cusp is our next episode, we turn 100.
Mary McCord: Oh my gosh, we do not turn 100.
Andrew Weissmann: I feel 100.
Mary McCord: It is our 100th episode.
Andrew Weissmann: But you know what keeps me young? Talking to you, Mary.
Mary McCord: Okay, me too.
Andrew Weissmann: So, it’ll be our 100th episode. This is 99.
Mary McCord: That’s really exciting.
Andrew Weissmann: It’s been such a great ride.
Mary McCord: It has been.
Andrew Weissmann: Really fun. I hope for the listeners it’s been great too. Thanks for listening. Remember for those people who choose, you can subscribe to MSNBC Premium if you want ad free episodes of “Prosecuting Donald Trump.” It’s on Apple podcasts. There also is exclusive bonus content from your favorite MSNBC podcasts and shows, but you can continue to just get this show for free with ads any day of the week. So thanks so much for listening.
Mary McCord: Yes, you can. To send us a question, you can leave us a voicemail at 917-342-2934, or you can e-mail us at prosecutingtrumpquestion@nbcuni.com. This episode was produced by Max Jacobs and Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Catherine Anderson. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio, and Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.